The balance of interests in US copyright law
(Michael J. Remington, Kexin Li)
Updated: 2013-09-05

Statutory law developments in US copyright law

The statutory amplitude of US copyright law likely exceeds Chinese readers’ imagination. The Copyright Act has been amended many times since its birth to include new subject matters (like architectural works), to incorporate new transmission technologies (such as cable television, satellite carriage, and webcasting), and to calibrate infringement penalties in various forms of liability. Many incremental amendments incorporated judicial doctrines into the law. Other amendments harmonized US law with international treaty standards.

One notable trend is the fact that the US copyright term has become increasingly longer. The US Congress first exercised its power under the Patent and Copyright Clause to provide copyright protection with the enactment of the Copyright Act of 1790, which granted authors the exclusive right to publish and sell maps, charts and books. The initial copyright term was 14 years, and the copyright could then be renewed for another 14-year term if the author was living at the end of the original term. The Copyright Act of 1831 extended the initial copyright term to 28 years (with an option to renew for 14 years if the author or the author’s widow, child or children were living at the end of the initial term), and the Copyright Act of 1909 further increased the renewable additional term to 28 years (with no requirement that the author, the author’s widow, child, or children be living).

The Copyright Revision Act of 1976 set the fundamental framework for modern copyright protection in the US and paved the way for the US to join the world’s most important copyright treaty — the Berne Convention — by extending the term to 75 years with a term of protection of 28 years and a renewal term of 47 years for works by corporate entities or the lifetime of the author plus 50 years. In 1992, Congress eliminated the renewal registration requirement. More recently, the Copyright Term Extension Act (CTEA) of 1998 made another 20-year extension to copyright term. Political debate about the CTEA was heated. Constitutional challenges reached the Supreme Court and, after due consideration, the CTEA was held constitutional in Eldred v. Ashcroft , 537 U.S. 186 (2003). In reaching its decision, the Court highlighted the importance of facilitating international copyright harmonization, noting that European countries have copyright terms of the author’s lifetime plus 70 years.

Another notable trend is the growing length and complexity of US copyright law. There were only two pages and seven chapters in the Copyright Act of 1790. Congress has been adding text ever since, and it has been especially active in the past fifteen years. One milestone is the Digital Millennium Copyright Act of 1998 (DMCA), which addressed a variety of contemporary problems such as online intermediaries, anti-circumvention prohibitions, and digital rights management (DRM) measures. To this day, the emergence of the Internet, with its digital, reproduction, distribution and public performance issues, has presented serious challenges to the fabric of US copyright law. In any event, the current volume of the Copyright Act, found at Title 17 of the US Code, has reached 280 pages and thirteen chapters. Overall, the judiciary continues to be a key dispute resolution player and interpreter of statutory law.

Despite the Act’s amendments and common law interpretations, Register Pallante still recently observed that “the law is showing the strain of its age.” According to Pallante, currently “authors do not have effective protections, good faith businesses do not have clear roadmaps, courts do not have sufficient direction, and consumers and other private citizens are increasingly frustrated.” One may not fully understand Pallante’s statement by merely reading the Act’s provisions because the Act operates in the context of cultural, technological and economic change. Policy questions seem to be ever-increasing. For example, what should be done when copyrighted works are orphaned: that is, when the author (or owner) of a copyrighted work cannot be found? Due to an extremely expensive litigation system in the US, should small copyright courts be created? What should be done about endemic digital piracy and international counterfeiting?

Case law developments in US copyright law

In a changing society, controversies often emerge when courts are called upon to construe copyright law, apply it to a specific set of facts, and, in difficult cases, determine what Congress intended. The following four recent cases — two of which are district court decisions and do not represent the last word — are illustrative of the role that courts play in the US copyright system.

First, in Bikram’s Yoga College of India v. Evolation Yoga, LLC (2012 U.S. between rewarding creativity and allowing the public to practice yoga sequences at affordable costs. Second, a core issue in copyright litigation across the globe is whether a copyright has been infringed and, if so, what damages should be awarded. In China, many people are shocked by learning that under most circumstances they should pay for music downloaded from the Internet. This view illustrates two competing interests: on one hand, the public interest in enjoying music at prices as low as possible (even free); and, on the other hand, the need for songwriters and record labels to be rewarded for their musical works and sound recordings. In Capitol Records, Inc. v. Thomas-Rasset (692 F.3d 899 (8th Cir. 2012)), a Minnesota woman, Jammie Thomas-Rasset, downloaded 24 sound recordings via Kazaa, a files-haring computer program, and left them in the default file-share folder so that others could download the music. A copyright infringement suit was brought by several record companies against Thomas-Rasset. After three trials in federal district court, a jury verdict awarded the companies $222,000 in statutory damages (but no actual or punitive damages). The US Court of Appeals for 8th Circuit refused to set aside the award, finding that a standard established by the Supreme Court controls: a statutory damages award comports with the due process clause so long as it cannot be said to be “so severe and oppressive as to be wholly disproportioned to the offense or obviously unreasonable.” St. Louis I.M. & S. Railway Co. v. Williams, 251 U.S. 63, 67 (1919). The court also rejected 2012)), Bikram Choudhury, a world famous yogacharya from India, designed his own “Bikram yoga,” consisting of a sequence of twenty-six yoga poses and two breathing exercises. Discovering that some former trainees of a course he taught had opened several yoga studios of their own and were teaching the same sequence without his permission, he brought copyright infringement claims in California against them. But can a sequence of yoga poses receive copyright protection? To be copyrightable, creative works must fall within one of eight “works of authorship” categories set forth in §102(a) of the Copyright Act (literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works ; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works). On the other hand, an item that falls within any of the eight categories in §102(b) (idea, procedure, process, system, method of operation, concept, principle, or discovery) is not eligible for copyright protection. In its opinion, the district judge identified a line between creative “pantomimes and choreographic works” (which are copyrightable under §102(a)(4)) and functional systems or processes designed to improve one’s health (which are not copyrightable under §102(b)) and found that a sequence of yoga poses falls within the latter. In effect, the result of this case maintained a statutory balance between rewarding creativity and allowing the public to practice yoga sequences at affordable costs.

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